Salinas Valley Memorial Healthcare System (PERB 2298M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
NATIONAL UNION OF HEALTHCARE
WORKERS,
Charging Party,
V.
SALINAS VALLEY MEMORIAL
HEALTHCARE SYSTEM,
Respondent.
Case No. SF-CE-797-M
PERB Decision No. 2298-M
December 20, 2012
Appearances: 	Siegel & Le Witter by Latika Malkani, Attorney, for National Union
of
Healthcare Workers; Ottone Leach Olsen & Ray by Anne Frassetto Olsen, Attorney, for
Salinas Valley Memorial Healthcare System.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the National Union
of
Healthcare Workers (NUHW) from
dismissal
of
it's
unfair practice charge filed against the Salinas Valley Memorial Healthcare
System (Hospital) under the Meyers-Milias-Brown Act (MMBA). 1
The charge, as amended, alleged that 	Hospital failed and refused to meet and confer
in good faith over a decision to lay off employees, the implementation
of
the layoff, and the
impacts and effects
of
the layoff on remaining employees, and in addition failed to provide
NUHW with requested information regarding the layoff, its implementation and its negotiable
impacts and effects. The
	of
	General Counsel dismissed the charge for failure to
state a prima facie case.
1 MMBA is codified at Government Code section 3 500 et seq. All statutory references
are to the Government Code unless otherwise indicated.

We have reviewed the record and the dismissal in light
of
NUHW'
s appeal, the
Hospital's response thereto, and the relevant law. Based on this review, we shall affirm in part
and reverse in part the dismissal, and will remand the matter for issuance
of
a complaint.
We turn first to a factual summary, then the dismissal,
NUHW's
appeal, the Hospital's
response, and lastly our discussion and disposition
of
the issues.
SUMMARY OF ALLEGATIONS2
The Hospital is a public agency and an employer within the MMBA. NUHW is an
employee organization within the MMBA and represents exclusively a unit
of
Hospital
employees pursuant to the MMBA.
On October 25, 2010, NUHW was certified to represent the Hospital's "Technical,
Service and Maintenance, and Clerical" bargaining unit. Another employee organization
previously represented the unit. The Hospital and the former representative were parties to a
negotiated agreement that expired in August 20 l 0, and that provided, in pertinent part:	
"If
it
becomes necessary to conduct a long-term or permanent layoff, the [Hospital] will meet and
confer with [NUHW] to discuss the layoff, the existence
of
any practical alternatives to avoid a
long-term layoff, and the effects
of
any long-term layoffs."
Layoff
On November 9, 2010, the Hospital requested in writing that NUHW discuss "the topic
of
workforce reduction at Salinas Valley Memorial Hospital." The Hospital asserted an
"urgent need" to cut labor costs to assure profitability. Meet and confer meetings over
"workforce reduction" commenced on November 17, 2010, and continued thereafter on
At this stage of the proceedings, we assume as we must that the essential facts alleged
in the charge are true. (San Juan Unified School District (1977) EERB* Decision No. 12;
Trustees
of
the Cal(fornia State University (Sonoma) (2005) PERB Decision No. 1755.)
(*Prior to January 1978, PERB was known as the Educational Employment Relations Board or
EERB.)
2

December 7, 8, 16, 17, 21 and 27, 2010. The Hospital declared impasse on December 22,
2010, by way of an e-mail sent to John Borsos (Borsos), NUHW's chief representative, from
Bev Ranzenberger (Ranzenberger), the Hospital's chief representative. This e-mail claimed
the parties had reached impasse in negotiations the night before, on December 21, 20 l O.
On November 17, 2010, and at subsequent meet and confer sessions, NUHW
representatives demanded the Hospital meet and confer regarding, inter alia: (1) its decision to
lay off employees, (2) implementation of the layoff, including timing of the layoff, and the
number and the identity of employees to be laid off, and (3) impacts on employees remaining
after the layoff, including workload and safety issues. Hospital representatives responded
uniformly that the Hospital had no duty to meet and confer, and refused to meet and confer,
regarding: (1) the decision to lay off employees, (2) the layoff implementation, including
timing, and the number and the identity of employees to be laid off, and (3) the layoffs effects
on working conditions of remaining employees.
On November 22, 2010, Borsos confirmed by e-mail NUHW's positions stated on
November 17, 2010, and requested information relevant to the proposed layoff. Ann Kern
(Kern) responded by e-mail the same day confirming the Hospital's November 17, 2010
positions. On November 19, 2010, the Hospital provided to the NUHW a list of job
classifications to be laid off, but did not identify the individuals in those classifications.
Borsos replied on November 23, 2010, reiterating NUHW's previously stated positions, and
offering to meet again on December 7, 2010.3 On December 3, 2010, Ranzenberger e-mailed
Borsos that the Hospital had determined the layoff would occur by "the end of the calendar
year."
3 NUHW explains its brief delay thus: 	it had only recently become the exclusive agent
for the bargaining unit, it needed time to prepare for bargaining, including recruiting and
orienting a bargaining committee of employees familiar with the Hospital's operations and
practices.
3

On December
7,
2010 the parties' representatives met. NUHW representatives
demanded the Hospital disclose and bargain over the identity and job classifications
of
employees to be laid off, the number
of
employees to be laid off, the timing
of
the layoff, and
the impact
of
the layoff on workload and safety
of
employees remaining after the layoff.
Hospital representatives refused, contending these matters were not subject to meeting and
conferring. Hospital representatives reiterated what previously was announced, to wit, the
Hospital would lay off 79 employees by the end
of
the year. In declining to negotiate over the
timing
of
layoffs, the Hospital representatives asserted that "the train had left the station."
Hospital representatives declined to provide or discuss the identity and job classifications
of
persons to be laid off, asserting these were not layoff "effects." NUHW representatives urged
the Hospital to disclose and discuss its plans for workload and safety
of
employees remaining
after the layoff. Hospital representatives asserted that impact
of
a layoff upon workload and
safety
of
remaining employees was not subject to meet and confer. Later in the day, Hospital
representatives sent NUHW a one-page "complete" proposal on effects bargaining, which
recited that the Hospital would lay off employees by the end
of
the 2010 calendar year, that
employees would be notified by mail, that laid-off employees would have re-employment
rights for six months and that rehire would be based on "skill/qualification/disciplinary
action/seniority." The proposal offered to discuss with NUHW bumping rights for employees
to be laid off.4 This proposal did not include the numbers to be laid off.
On December 8, 2010 the parties' representatives met. They reiterated their previously
described positions. NUHW criticized the Hospital's one-page "complete" proposal as lacking
specificity. 	NUHW requested the Hospital to disclose and discuss: 	its entire plan for the
Although this description of the one-page proposal submitted by the Hospital on
December 7, 2010, is not contained in the first amended unfair practice charge (UPC), it was
attached to the declaration of Razenberger in opposition to NUHW's request for injunctive
relief submitted under penalty of perjury.
4

layoff, including the identity and job classifications of employees to be laid off, the number of
employees to be laid off, the timing of the layoff, and the layoff's impact on workload and
safety of remaining employees. 	NUHW representatives sought disclosure and discussion of
the layoff notice to be given the employees to be laid off, including the timing of the notice
vis-a-vis the layoff effective date, the content of the notice, severance pay and the health
insurance options. NUHW representatives further sought disclosure and discussion, by
Hospital department, of the layoff reductions and the impact of those reductions on the
remaining department employees. Finally, NUHW sought disclosure and discussion of
alternatives to layoff, including reduction in the Hospital's non-labor-cost expenses. Hospital
representatives refused to discuss these matters, responding that the Hospital was moving
forward within its management rights, would conduct the layoff by December 31, 2010, and
would lay off whomever they needed to. 	The NUHW expressed at this bargaining session its
objection to the employer-imposed timing of the layoff, saying that it was an artificially
constructed deadline.
On December 10, 2010, the Hospital notified NUHW that the layoff would occur on
December 28, 2010, and that the Hospital would send the employees notice on December 17,
2010. On December 13, 2010, NUHW responded, urging again that the Hospital confer over
the timing of the layoff, and other specific effects, including the impact on remaining
employees. The Hospital refused to bargain over the identity, timing, or notification of these
proposed layoffs prior to announcing to the NUHW the date of the layoff. The Hospital also
continued to refuse to bargain over how staffing, schedules of work, workload, and safety
hazards would change for the employees remaining after the layoff, and refused to "meet and
confer with the union over any practical alternatives to layoff." (Amended UPC,, 17.)
5

On December 16, 2010 the parties' representatives met. NUHW representatives
demanded the Hospital address and discuss implementation and effects issues, including the
total number
of
employees to be laid off, the identity
of
the employees to be laid off, which
job
classifications would be subject to layoff, how shifts and work assignments would be affected
and the impact
of
the layoff on the workload or safety
of
remaining employees. The
NUHW
reiterated its demand to meet and confer over "what other changes could be made in each
of
these departments, or in the hospital at large, that might render the layoffs unnecessary,"
(Amended UPC,
120.)
Hospital representatives refused, asserting again that the timing
of
a
layoff, and the number and identity
of
employees to be laid off, were its managerial
prerogative.
	It
announced that the notices to employees would be sent the following day,
December 1
7,
20 I
0.
	NUHW representatives proposed postponing the layoff pending
completion
of
effects discussions. The Hospital refused. NUHW representatives sought again
to engage Hospital representatives on the layoff's impact on remaining employees. Hospital
representatives refused to engage, contending that such matters were not effects
of
layoff.
On December 17, 2010 the parties' representatives met. The Hospital provided
NUHW
what NUHW described it as the first "substantive" proposal. It addressed such topics as
seniority, notice, reemployment rights and criteria. This proposal indicated the layoff would
occur on December 28, 20
IO
and invited a discussion
of
bumping rights. This proposal did not
address the identity and total number
of
employees to be laid off, 	job classifications subject
to layoff, and the layoff's impact on
	~•u~,
.....
,..,
employees. (See Exhibit 6, First Amended
UPC.)
NUHW representatives responded to this proposal. They insisted that Hospital
representatives engage as well on the number and identity of employees subject to layoff, the
timing of the layoff, and the increased workload and increased safety hazards of the remaining
6

employees. 	Hospital representatives again refused to discuss these issues. Hospital
representatives stated that the Hospital would soon mail layoff notices to employees.
NUHW
representatives began to respond to the Hospital's written proposal and continued to demand
that the Hospital negotiate over the specific effects it had consistently demanded to negotiate.
NUHW also urged that conferring over layoff effects was incomplete, that there was much yet
to be done, and that the parties had not yet reached either agreement or impasse. 	The Hospital
informed NUHW it would be moving forward with the layoffs.
On December 21, 2010 the parties' representatives met again. The Hospital announced
that it had decided to lay off only 20 employees, not the previously-announced 79. Hospital
representatives provided NUHW a list
of
20 positions identified by job title but not including
employee name or department, and refused to discuss the number
of
employees to be laid off,
their department and their identity. Hospital representatives proposed a severance package for
the laid off employees. NUHW agreed to consider the severance package, and offered
alternative proposals concerning the effects
of
layoffs, including creating a supplemental
unemployment benefit allowing employees to volunteer for layoffs, an "enhanced" severance
package, a process for recalling the iaid off empioyees, and the implementation
of
schedule
changes for remaining employees. 5 Hospital representatives asserted that they would continue
to confer after laying off employees. NUHW representatives urged instead a brief delay to
permit completion
of
effects discussions before the layoff. Hospital representatives refused.
As of December 22, 2010, when the Hospital unilaterally implemented the layoff by sending
notices to the affected employees, the parties were engaged in bargaining over the following
5 The Hospital characterized this interchange not as a proposal from the NUHW, but as
an intent to make a proposal on these topics. This is a disputed fact, contrary to our dissenting
colleague's assertion that it is undisputed that the NUHW "failed to offer any substantive
proposals over a perceived effect of'' the decision to lay off employees. 	In cases of disputed
facts and conflicting allegations at the pleading stage, we refer the matter to a hearing.
(County of Inyo (2005) PERB Decision No. 1783-M (County of Inyo).)
7

issues, but had not yet reached agreement: (1) number
of
employees to be laid off; (2)
timing
of
layoffs; (3) severance pay; (4) preferential hiring and rehiring procedures; (5) per diem
work. Also, on December 22, 2010, the Hospital's representative sent the NUHW president an
e-mail asserting that the parties had reached impasse the night before on "the number
of
employees and the date
of
the layoff." 	As
of
this date, the Hospital continued to refuse to
discuss workload and safety issues for the remaining employees.
On December 22, 2010, the Hospital sent NUHW a "list
of
twenty employees subject to
layoff." Concurrently, the Hospital implemented the layoff, by delivering written notice
of
layoff to the 20 listed employees. The notice stated that the employee's
job
was "eliminated"
effective at 8:00 a.m. on December 28, 2010, and that the Hospital would pay two weeks'
severance and provide several other benefits not yet agreed upon between the Hospital
and
NUHW. The Hospital indicated that agreement on many effects had not been reached
and
it
was willing to continue negotiating after notice
of
layoff had been sent to the affected
employees. The NUHW president replied, contending the parties were not at impasse.
On December 23, 2010, the Hospital sent another e-mail to Borsos stating that the
Hospital would not be making any additional changes in its proposal
of
December 21, 2010,
and clarified that laid
off
employees would be given no recall rights. The NUHW alleges that
by this e-mail, the Hospital reneged on an earlier proposal to provide a process for recalling
off
employees.
On December 27, 2010 the parties' representatives met. NUHW gave the Hospital a
proposal, addressing 	dealt 	Hospital's 	proposal,
seniority, order
of
layoff, transfers, severance pay and benefits, and recall. When he presented
this written proposal, Borsos, the NUHW representative, explicitly told Hospital
representatives that the NUHW had "room to move." In addition to its written proposal,
8

NUHW also demanded to bargain over impact
of
the layoffs on remaining employees,
and
reiterated its request to delay implementation
of
the layoffs until negotiations were completed.
Hospital representatives refused to bargain over the number
of
employees to be laid off,
declaring it had never been its intent to
do so. The Hospital also refused the NUHW's request
to discuss scheduling issues for remaining employees, what new job assignments would result
due the layoff, or other impacts on remaining employees. The Hospital explained its refusal to
bargain these matters, saying "we're not here to discuss those details." (Amended UPC, ,i 35.)
After receiving NUHW's written proposal, the Hospital caucused for a short time, and
returned, declaring that the parties were at impasse and withdrew from the discussions. The
NUHW protested and denied there was an impasse.
On December 28, 2010, at 8:00 a.m., the Hospital terminated the 20 noticed employees.
From January 3, 2011 to March 21, 2011, NUHW repeatedly demanded to bargain the
Hospital's decision to layoff the 20 employees. The Hospital repeatedly refused to bargain the
layoff decision.
On January 3, and January 6, 2011, NUHW demanded to bargain about the "effects"
of
the layoffs. According to NUHW those effects included, among other things, "the number
of
employees to be laid off," the "timing"
of
the layoffs, severance pay, and "per diem" work. On
an unspecified date in January 2011, the parties reached an agreement about "per diem" work.
However, the Hospital refused consistently to bargain about the number
of
employees to be
laid off or the "timing" of the layoffs.
On January 27, 2011, Borsos wrote to the Hospital's Attorney, Anne Olsen (Olsen).
Citing the California Supreme Court's decision in International Assn.
of
Fire Fighters, Local
188, AFL-CIO
v.
P ERB,· City
of
Richmond (2011)
51
Cal.4th 259 (City
of
Richmond), Borsos
claimed, in essence, that in City
of
Richmond the Supreme Court had "reaffirm[ed]" the rule
9

that an employer must meet and confer to impasse over both the decision to lay off employees
and the effects of that decision. Borsos demanded that the Hospital reestablish the status quo
and return to meet and confer discussions.
On February 10, 2011, Olsen responded to Borsos, disputing NUHW's reading of City
of Richmond, which she opined reserved to a public agency employer the decision of whether
to layoff. Olsen reviewed the parties' pre-layoff discussions, and rejoined that the Hospital
had appropriately refused NUHW' s demands to confer over matters within its managerial
prerogative. Olsen stated that the Hospital would meet and confer over the impact of the layoff
on remaining employees.
Information Requests
As noted above, the amended charge does not describe the parties' meeting on
November 17, 2010. Nevertheless, it appears NUHW then demanded information related to
the layoffs because, on November 19, 2010, Kern wrote to Borsos as follows:
The attached documents are intended to address your request for
information at the November 17, 2010 meeting. We will provide
documentation as it becomes available.
On November 19, 2010, Kern wrote to Borsos and answered five "miscellaneous
questions" in response to NUHW's "request for additional information." Among other things,
Kern stated that the Hospital expected to save $1. l million in 2010 by not issuing cost-of-
living raises. 	She also stated that 71 non-bargaining unit employees had accepted "buyout[s]"
in 2010 and that 34 percent of those employees were managers. Kern also sent Borsos an
e-mail message on November 19, 2010, listing 79 employees (only by job code and
classification) that the Hospital intended to layoff.
On November 22, 2010, Borsos asked Kern to send him 12 numbered items of
information. Borsos then asked Kern to identify any "work load" changes that the Hospital

may have implemented in "the last six months" (Item No. 6) and to identify any "efforts" the
Hospital may have "taken to increase revenues into the hospital" (Item No. 12).
On November 22, 2010, Kern responded to Borsos as follows:
We are evaluating your request for information and will continue
to provide documentation via separate email. 	[My] previous
emails were not meant to be all inclusive, rather to be responsive
to your requests as the information becomes available. ~ To our
knowledge, Fred Seavey, [of] NUHW, has already received items
2 and 3 listed below. I would appreciate your checking with him
before we duplicate our efforts in re-providing this information.
In an e-mail message dated November 22, 2010, Borsos responded to Kern as follows:
We appreciate your responsiveness on the information that we
have so far requested, and you are correct, that the information
regarding Wellspring was previously provided to Fred Seavey
from our union. Accordingly, we are not asking you to duplicate
any response.
Although the Hospital continued to write to Borsos during the next several months, at
no point did it change its expressed willingness to provide information as it became
"available." Similarly, Borsos wrote to the Hospital numerous times during the next several
months, but at no point did he claim that the Hospital had failed to follow through on NUHW' s
information requests.
THE DISMISSAL
The Office of the General Counsel determined that the charge as amended did not state
a prima facie case, concluding: (a) the Hospital's decision to lay off was not a mandatory
subject of meeting and conferring; (b) language in the agreement between the Hospital and
NUHW's predecessor did not "waive" the Hospital's right to make a layoff decision without
meeting and negotiating thereon; (c) NUHW's allegations do not establish that the Hospital
failed to meet and confer over impacts and effects of the layoff decision; and (d) NUHW's
11

allegations fail to establish that the Hospital failed or refused to provide information requested
byNUHW.
NUHW' S APPEAL
On appeal, NUHW argues that: (a) the Hospital's firm decision to lay
off
employees in
order to reduce labor costs obliged it to meet and confer with NUHW over layoff
implementation (timing, number and identity
of
employees to be laid off) and the impact and
effects
of
the layoff decision on remaining employees, including workload and safety,
and
the
Hospital did not do so; (b) PERB's agent should have issued a complaint to permit a hearing
on unclear or ambiguous language in an expired memorandum
of
understanding (MOU)
arguably requiring the Hospital to meet and confer over the layoff decision; (c) the Hospital
did not meet and confer in good faith over the effects
of
the layoff, steadfastly refusing to
confer over either implementation (timing, number and identity
of
employees to be laid off) or
impact and effects
of
the decision on remaining employees, including workload and safety
of
such employees; and (d) NUHW sufficiently alleged that the Hospital failed to respond to
NUHW' s repeated requests for information regarding implementation and effects
of
the layoff.
HOSPITAL'S RESPONSE
In response, the Hospital argues that PERB' s Office
of
the General Counsel properly
decided the issues raised by the amended charge, and properly refused to issue a complaint. It
asserts that it had no duty to negotiate over the decision to lay
off
employees, either under the
law or under the expired MOU; that it initiated negotiations on the implementation
of the
layoff and provided adequate advance notice of the layoff for negotiations to
be
completed by
the end of the year; that it explained to NUHW the need to complete the layoff by the end
of
the year; that the date for the layoff was not arbitrary; that it was NUHW that bargained in bad
faith by refusing to submit any proposals until the eve of layoff, causing the Hospital to
12

effectively "bargain against itself"; that NUHW never presented any proposals on workload or
safety issues for remaining employees; and that the Hospital continued to bargain in good faith
after the layoff was implemented.
DISCUSSION
Standard
of
Review
As noted above, this case is an appeal from a dismissal and refusal to issue a complaint.
Our inquiry at this stage is focused solely on the sufficiency
ofNUHW's
allegations.
	We
test
NUHW' s allegations against the legal standards for a violation
of
the MMBA, not against
contrary allegations
of
the Hospital even where those contrary allegations may be more
persuasively stated. 	We do not resolve conflicting allegations. (Golden Plains Unified School
District (2002) PERB Decision No. 1489.) Instead, we refer them to a hearing and ultimate
resolution following findings by an administrative law judge (ALJ). (County
of
Inyo; Eastside
Union School District (1984) PERB Decision No. 466 (Eastside).)
The questions presented by NUHW's appeal are:
1.	
Whether NUHW alleged prima facie that the Hospital failed and refused to meet and
confer upon request with NUHW regarding: (a) the decision to lay off employees, (b) the
layoff implementation, including the timing
of
the layoff, and the number and identity
of
the
employees to be laid off, and (c) the impact and effect
of
the layoff on the remaining
employees, including workload and safety
of
such employees; and
2. Whether NUHW alleged prima facie that the Hospital failed and refused to provide
NUHW with requested information related to the layoff.
The Layoff Decision
Under the MMBA, a decision to lay off employees is generally managerial prerogative
as to which the employer has no duty to meet and confer with the employees' union over the
13

decision itself. (Fire Fighters Union
v.
City
of
Vallejo (1974)
12
Cal.3d 608 (Vallejo);
City
of
Richmond; Newman-Crows Landing Unified School District (1982) PERB Decision No. 223
(Newman-Crows Landing);
Mt.
Diablo Unified School District (1983) PERB Decision No. 373
(Mt. Diablo).
NUHW alleges that the Hospital failed to meet and confer regarding the decision to lay
off
employees. The Office
of
the General Counsel determined that NUHW's allegation
of
failure and refusal to meet and confer over the November 2010 layoff decision was insufficient
to state a prima facie case. We agree.
The Hospital announced its decision to lay off employees in November 2010, shortly
after NUHW acceded to the status
of
exclusive representative in late October 2010. NUHW' s
predecessor organization had concluded an MOU with the Hospital, which MOU had expired
in August 2010. The MOU contained a provision arguably obliging the Hospital to meet and
confer over a decision to lay off employees. NUHW contends that the expired MOU obligated
the Hospital to meet and confer with NUHW regarding its decision to lay off employees, and
that the obligation to meet and confer over a decision
to
lay off continued in effect pursuant to
the MMBA as part
of
the status quo which the Hospital was obliged by MMBA to maintain
pending discussion with NUHW for a new agreement. Thus, reasons NUHW, when the
Hospital made a decision to lay off employees without having met and conferred with NUHW,
it violated the status quo and thus the MMBA. We disagree.
As explained above, the MMBA imposes on employers a duty to meet and confer
regarding matters within the scope of representation, which does not include managerial
decisions such as a decision to lay off employees. (City
of
Richmond.) Thus, the MMBA
imposes a duty to meet and confer over the implementation and the impacts and effects
of
a
layoff decision, but not the decision itself. (Id.) The obligation to maintain the status quo on
14

matters within the scope of representation following certification of a successor organization,
attaches only to those matters which are mandatory subjects. (San Joaquin County Employees
Assn. v. City of Stockton (1984) 161 Cal.App.3d 813; County of Alameda (2006) PERB
Decision No. 1824-M; Stanislaus Consolidated Fire Protection District (2012) PERB Decision
No. 2231-M.) Including an agreement on a non-mandatory subject within a MOU does not
convert the non-mandatory subject into a mandatory subject. (Chemical Workers v. Pittsburg
Glass Co. (1971) 404 U.S. 157;6 Eureka City School District (1992) PERB Decision No. 955;
Poway Unified School District (1988) PERB Decision No. 680.) Nor does an agreement
regarding a non-mandatory subject become part of the "status quo" which an employer must
maintain while meeting and conferring for a successor MOU. (Columbus Printing Pressmen
Union No. 252 (1975) 219 NLRB 268, enf'd, (5 th Cir. 1976) 543 F2d 1161; Berkeley Unified
School District (2012) PERB Decision No. 2268.)
The Hospital's decision in November 2010 to lay off employees was a non-mandatory
subject under the MMBA. The Hospital was not obliged by its MOU with NUHW's
predecessor to meet and confer regarding the layoff decision. We conclude that NUHW's
allegation that the Hospital violated the MMBA when it did not meet and confer over the
decision to lay off employees, fails to state a prima facie violation of the MMBA, and we
dismiss this allegation.
The Impacts and Effects of Layoff
Under the MMBA, once an employer makes a layoff decision, the employer is obliged
to notify the organization representing employees of the decision and to meet and confer in
When construing MMBA and other California public sector labor relations statutes,
California courts and PERB rely on cases construing similar language in the National Labor
Relations Act. (Vallejo.)
15

good faith, upon request, regarding the reasonably foreseeable impacts and effects of the layoff
decision. (Vallejo; City of Richmond,· Newman-Crows Landing,· Mt. Diablo.)
California's Supreme Court recently reconfirmed that having reached a firm decision,
driven by labor cost considerations, to lay off employees, an MMBA employer must meet and
confer, upon request, with the union representing the employees, both as to the implementation
(including the timing, and the number and identity of employees to be laid off) 7 and as to the
effects of the layoff on the remaining employees, including post-layoff workload and safety
conditions of remaining employees. (Vallejo; Los Angeles County Civil Service Com. v.
Superior Court (1978) 23 Cal.3d 55, 64; City of Richmond, at pp. 276-277.) Thus, where a
layoff is driven by labor cost considerations, an employer must meet and confer in good faith,
upon request, over the implementation and the reasonably foreseeable impacts and effects on
remaining employees.
Meeting and conferring on the implementation and effects of a non-negotiable layoff
decision should commence early enough to reach completion, including resolution of an
impasse, prior to implementation of the decision. (Mt. Diab lo.) Only under certain
circumstances may an employer implement a non-negotiable layoff decision prior to
completing the meet and confer process. (Compton Community College District (1989) PERB
Decision No. 720 (Compton CCD) [implementation permissible prior to completing meet and
confer where: (1) the layoff implementation date was not arbitrary but based on an immutable
externally-established deadline, or on an important managerial interest such that delay beyond
7 This Board's early decisions concerning the impact and effects oflayoffs arose in
circumstances where layoff implementation procedures were described in part by statute.
(Education Code§§ 44949, 44955.) Where the statute established an immutable timeline or
procedure, or stipulated that the employer alone make a decision concerning implementation,
the Board concluded the issue was non-negotiable. (Mt. Diablo.) Where the statute provided
employer discretion, and did not require that the employer alone make a decision,
implementation issues like other impacts and effects of the layoff decision were deemed
appropriate subjects for meeting and negotiating. (Ibid.)
16

the chosen date would undermine the employer's right to make the decision to lay off; (2) the
employer gave notice of the layoff decision and implementation date sufficiently in advance of
the implementation date to allow for meaningful meeting and conferring prior to the
implementation; and (3) the employer met and conferred in good faith on implementation and
effects prior to the implementation, and thereafter as to those subjects not resolved by virtue of
the implementation].)
NUHW alleges that the Hospital refused to meet and confer regarding, and
implemented the layoff without meeting and conferring over, the implementation of the layoff,
including the timing, and the number and identity of employees to be laid off, and the impacts
and effects of the layoff on the workload and safety of remaining employees. The Office of the
General Counsel determined that NUHW' s allegation of failure to meet and confer over the
implementation of the layoff and the impact and effects on remaining employees was
insufficient to state a prima facie case. We disagree.
Following its November 2010 notification ofNUHW about the decision to lay off 79
employees "at the end of the year," the Hospital met several times with NUHW to confer
regarding the announced layoff. NUHW alleges that at the outset of the discussions, and
regularly during each meeting thereafter, NUHW representatives demanded that the Hospital
confer regarding the implementation (timing, number and identity of employees to be laid off),
and the impact and effects of the layoff on remaining employees, including their workload and
their safety. NUHW alleges that the Hospital representatives responded to these demands as
follows: 	the Hospital viewed these matters as managerial prerogative, beyond the Hospital's
duty to meet and confer under the MMBA, and thus the Hospital would not meet and confer
thereon. NUHW alleges that it pressed the Hospital to provide details of its announced layoff.
NUHW alleges that in a series of documents the Hospital described as "proposals" Hospital
17

representatives revealed piecemeal to NUHW various aspects
of
the Hospital's layoff plan, all
the while declaring that the timing, number and identity of employees to be laid off, and the
impact and effects
of
the layoff on remaining employees, were matters
of
managerial
prerogative and not subject to the Hospital's MMBA duty to meet and confer.
The Hospital counters that it, not NUHW, initiated the layoff talks, and that it proffered
to NUHW three written proposals, while NUHW responded only with one written proposal and
at the eleventh hour. NUHW concedes that the Hospital did initiate layoff talks, and made
several proposals. As to layoff timing, the Hospital did change its initial position ("the end
of
the year") to the position it implemented ("8:00 am on December 28, 2010"). As to number
of
layoffs, the Hospital did change its initial position (79) to the position it implemented (20). As
to which employees it would lay off, the Hospital identified those employees to NUHW at the
time
of
its December 22, 2010 notice to the individual employees. Nonetheless, contends
NUHW, the Hospital asserted continuously that the timing, and the number and identity
of
employees to be laid off were managerial prerogatives and not matters on which the Hospital
would meet and confer. And as to the impact and effects
of
the layoff on the remaining
employees, the Hospital refused to address either workload or safety.
The changes in the Hospital's position, accompanied as they were by assertions that
these subjects were beyond the scope
of
representation, do not immunize it from a valid charge
that it refused to bargain 	good faith on the timing, number and identity
of
employees or on
the impact
of
the layoff on remaining employees. Where an employer believes a matter to be
scope of mandatory 	conferring, it is obliged to explore 	matter
meet and confer discussions. 	(Healdsburg Union High School District and Healdsburg Union
School District/San Mateo City School District (1984) PERB Decision No. 375.) Thereupon,
the employer may change its position and meet and confer on the matter, or it may continue to
18

assert its prior position and decline to meet and confer. In the latter case,
if
the employer is
incorrect, its refusal to meet and confer is unlawful. (Sierra Joint Community College District
(1981) PERB Decision No. 179 (Sierra CCD) [absolute refusal to negotiate violates duty to
negotiate in good faith].)
Here, it is undisputed that the Hospital's layoff decision was driven by labor cost
considerations. Thus, the implementation (timing
of
the layoff, and the number and identity
of
employees to be laid off) and the impact and effects on remaining employees, including
workload and safety, were mandatory subjects for meeting and conferring prior to the
implementation
of
the layoff. (City
of
Richmond.) It is also undisputed that the Hospital
declared an impasse on December 21, 2010, allegedly prematurely when NUHW had signaled
it had room to move and was willing to consider some
of
the Hospital's proposals. The
Hospital sent notices to affected employees the next day and refused NUHW' s request to delay
the implementation
of
the layoff for a couple
of
weeks until negotiations could be completed.
As NUHW alleged, the Hospital continuously contended that the subjects
of
workload, safety,
and identity
of
employees to be laid off were solely within its managerial prerogative, and
repeatedly refused NUHW's requests to meet and confer thereon.8 The Hospital's refusal to
meet and confer, at least on safety and workload issues, was absolute and thus unlawful.
(City
of
Richmond,· Sierra CCD.) The Hospital's December 21, 2010, proposal on numbers
unfair practice charge which also
8 The NUHW alleged that on December 21, 2010, 	before 	layoff notices were
sent to employees, "the employer verbally revised its former proposal concerning the number
of employees subject to layoff and then promised to lay off only 20 employees.... 	The
employer proposed various dates for the layoffs .... The union did not accept these proposals
that night, but offered to consider them.... The union asked the employer to briefly postpone
the effective date of these layoffs until the parties had an opportunity to complete bargaining at
least over the effects of the layoffs. ,The hospital refused." (Amended UPC, ,124.)
19

articulates a theory that the employer violated the MMBA by unilaterally implementing the
layoff before the parties had reached a genuine impasse.
An employer may implement a non-negotiable layoff decision prior to completing its
meet and confer obligations as to the effects
of
the layoff only under certain conditions,
including the condition that it meet and confer in good faith over those matters that are
mandatory subjects for meeting and conferring. (Compton CCD.) NUHW has alleged the
Hospital unlawfully failed and refused to meet and confer in good faith over effects
of
its
labor-cost driven layoff decision, to wit, implementation (timing, number and identity
of
employees to be laid off) and the impact and effects upon remaining employees, and therefore
the Hospital's implementation
of
the layoff is unlawful. NUHW has also alleged that there
was no urgency or other business necessity that required the Hospital to lay
off
employees
before the end
of
the year, rather than granting NUHW's request for a couple
of
extra weeks
of
negotiations. The requests for delay came at a point in the parties' discussions in which
proposals were being exchanged and when NUHW indicated it had room to move on certain
issues. 	In short, NUHW has made out a prima facie case that the Hospital prematurely
declared impasse and implemented the layoff before negotiations over implementation and
effects were complete. It has also alleged that at least two
of
the Compton CCD prerequisites
that could justify implementation before completion
of
negotiations are not present: good faith
bargaining prior to implementation and a non-arbitrary date based on either an immutable
externally established deadline or on an important managerial interest such that delay beyond
would	the chosen date 	undermine the employer's right to make the decision to lay off. 9
20
In its sworn statement opposing the NUHW's request for injunctive relief, the
Hospital states that it informed NUHW on December 8, 2010, that the Hospital needed to
complete the layoff by January 1, 2011, because that was the date Blue Cross/Anthem
reimbursement reductions would become effective, resulting in reduced revenues to the
Hospital. While this economic consideration explains why the employer selected the end of

We conclude that NUHW's allegations state a prima face case
of
refusal to meet and
confer over the timing, number and identity
of
employees to be laid off, and over the impact
and effects
of
the layoff on remaining employees, and
of
improper implementation
of
a non-
negotiable decision without completing meeting and conferring in good faith over effects
thereof. 	In reaching this conclusion, we acknowledge that the Hospital paints a very different
picture
of
the course
of
negotiations, where the employer gave adequate notice
of
the proposed
layoff and invited negotiations on what it considered negotiable implementation issues and was
faced with an allegedly recalcitrant union that sought to delay bargaining by, among other
things, insisting on bargaining about the layoff decision itself. As we are directed by Eastside,
if
the investigation results in "conflicting allegations
of
fact or contrary theories
of
law, fair
proceedings,
if
not due process, demand that a complaint be issued and the matter be sent to
formal hearing." At the pleading stage, it is not up to the Board agent to judge the merits
of
the charging party's dispute, but to leave the weighing
of
the evidence to the ALJ at a full
evidentiary hearing. (Saddleback Community College District (1984) PERB Decision No. 433;
Lake Tahoe Unified School District (1993) PERB Decision No. 994.) We leave to the ALJ the
task
of
determining the merits
of
these allegations-whether the employer bargained in bad
faith, or refused to bargain on negotiable subjects, or whether its hands are clean in the face
of
a bargaining partner that allegedly failed to make timely proposals on matters it had a right to
negotiate about.
the year as the deadline for layoff, the impending reduction in revenue does not necessarily
meet the Compton CCD test. Though economically desirable to have reduced expenses
coincide with reduced revenues, we cannot conclude at the pleading stage of this case that a
brief delay in the effective date of the layoff would undermine the right of the Hospital to
ultimately decide to lay off employees.
21

Duty to Provide Information
An employer has a duty to provide information, upon request, to a union seeking to
meet and confer over matters within the scope
of
representation, including the implementation
and effects
of
a layoff. (MMBA, § 3507(a)(8); accord, Oakland Unified School District (1983)
PERB Decision No. 326; Oakland Unified School District (1982) PERB Decision No. 275.)
This duty obliges an employer to respond promptly to the union's information request.
(Chula Vista City School District (1990) PERB Decision No. 834.)
NUHW contends that the Hospital failed to provide information requested by NUHW
regarding the layoff, its implementation and its effects. As summarized above, NUHW' s
allegations do not state that the Hospital failed and refused to provide, upon request,
information requested by NUHW related to the layoff and its implementation and effects.
Rather, NUHW admits that the Hospital offered to provide the information as it became
available, and thereafter NUHW did not reject this response as insufficient nor demand that the
Hospital provide the information with greater alacrity or in greater detail. We conclude, with
the Office
of
the General Counsel, that NUHW' s allegations are insufficient to state a prima
facie case
of
failure to provide requested information, and we dismiss this allegation.
ORDER
The National Union of Healthcare Workers (NUHW) allegations in unfair practice
charge Case No. SF-CE-797-M, that Salinas Valley Memorial Healthcare System failed and
refused to meet and confer in good faith with NUHW over the decision to lay off employees
and failed to provide NUHW relevant information concerning the layoff and effects thereof,
are hereby DISMISSED WITHOUT LEAVE TO AMEND.
22

The remaining allegations are hereby REMANDED to the Office of the General
Counsel for issuance of a complaint in accordance with this Decision.
Chair Martinez joined in this Decision.
Member Dowdin Calvillo's concurrence and dissent begins on page 24.
23

DOWD IN CALVILLO, Member, concurring and dissenting. I agree with my colleagues
that the charge, as amended, fails to state a prima facie violation
of
the duty to bargain with
respect to the decision to lay
off
employees and the refusal to provide information. I respectfully
dissent, however, from the decision to remand this case back for issuance
of
a complaint
on
the
issues
of
effects and implementation bargaining. Instead, I agree with the analysis and
conclusions reached in the dismissal and warning letters that the charge fails to allege sufficient
facts to establish that the Salinas Valley Memorial Healthcare System (Hospital) failed to
comply with the standards for pre-negotiation implementation under Compton Community
College District (1989) PERB Decision No. 720. I further agree that the charge failed to allege
sufficient facts to establish that the Hospital violated its duty to engage in bargaining over the
implementation or effects
of
the Hospital's decision to lay off employees. In this regard, I note
the undisputed evidence that the Hospital repeatedly invited National Union
of
Healthcare
Workers (NUHW) to negotiate over effects, including passing specific proposals concerning
potential effects, even though the burden was on NUHW to identify the negotiable effects it
wished to bargain. (Newman-Crows Landing Unified School District (1982) PERB Decision
No. 223 (Newman-Crows Landing).) I note, further, that the charge fails to allege facts showing
that NUHW made any specific, substantive proposals over any perceived effects
of
the
Hospital's non-negotiable decision to lay off employees until the day before the layoffs were
scheduled to be implemented. (Beverly Hills Unified School District (2008)
PERB
Decision
No. 1969, citing Fremont Union High School District (1987) PERB Decision No. 651 ["Before
implementing a non-negotiable decision, an employer has a duty to provide the union with an
opportunity to meet and confer over any 'reasonably foreseeable effects' of the decision on
24

subjects within the scope ofrepresentation."]; see also Trustees
of
California State
University (2012) PERB Decision No. 2287-H ["In order to make a prima facie case for
violation
of
the duty to bargain in good faith over effects, the employee organization must
demonstrate that it made a valid request to bargain the negotiable effects
of
the employer's
decision."].) Instead, NUHW continuously took the erroneous position that the Hospital was
obligated to bargain over the non-negotiable layoff decision. (Fire Fighters Union
v.
City
of
Vallejo (1974)
12
Cal.3d 608; International Association
of
Fire Fighters, Local! 188,
AFL-CIO
v.
Public Employment Relations
Bd.
(City
of
Richmond) (2011)
51
Cal.4th 259;
Newman-Crows Landing.) Accordingly, I would affirm the dismissal
of
the charge.
25